A Creator's Guide to Fighting Content Bullies

Credit: Timothy BanksJonathan McIntosh was, by all
Internet measures, succeeding. After uploading a video mashup of clips from Buffy
the Vampire Slayer spliced with scenes from Twilight, the compilation, which
paints Twilight’s vampire protagonist as a disturbing creep, garnered
views by the millions, hat
tips from major media outlets, and a 2010
Webby nomination for best video remix/mashup. That came to a halt in 2012
when Lionsgate, the company that owns the Twilight film series, filed copyright
claims against McIntosh, at first attempting to monetize the video then
eventually resulting in the video’s removal. McIntosh’s
side of the story is available here.

Working with attorneys from
New Media Rights, a nonprofit organization that provides low-cost or free legal
services to underserved creators, internet users, and entrepreneurs, McIntosh
was able to get his video reinstated, but the case is a disturbing one for
artists and critics who regularly use other’s work to create commentary. Teri
Karobonik, a staff attorney fellow with New Media Rights who was not involved in McIntosh’s
case, says content bullies are everywhere, just waiting to derail an online
project with a few quick keystrokes, and they oftentimes get their way since
many creators aren’t experts on copyright or fair use laws. Here’s how you can
guard your art against content bullies.

Get In Media: What are the justifications that content bullies use
for taking down artist material?

Teri Karobonik: Generally, content bullies, when they take down things
under Digital
Millennium Copyright [Act], the argument is, “Oh, it infringes on our
copyright.” However, a lot of content bullies do this without considering
fair use, which is a critical part of the copyright system. Fair use is a
doctrine that says while we respect the copyright holder’s right to have a
monopoly on their work, we value freedom of expression, so we’re going to put
in fair use kind of as a First Amendment safety valve for copyright law. When
someone’s a content bully, typical scenarios involve blatantly ignoring fair
use. … Sometimes it can be because there’s not a copyright issue, but they
just disagree with the message.

We’ve seen politicians in the
past who maybe don’t like how they’re being critiqued by someone online, so they’ll
file a DMCA takedown notice, and they’ll get an article taken down. Another
situation, we have had some copyright holders who have just said, “Fair
use doesn’t exist therefore we don’t acknowledge it.” That’s a small
percentage, but it’s a dangerous percentage. We’ve also had some people do it
as trolling, so a content bully could just be like, “I don’t agree with
you” or “I want to be mean to you, so I’m going to take your content
down.” It can also be competitors. It’s really just anyone who … disables
or removes content that is otherwise legal, [and that] otherwise doesn’t
violate copyright law just because they don’t like it or they don’t agree with
it for whatever reason.

GIM: How often does that kind of thing happen?

TK: Every day, pretty much. It’s a very common problem
online and unfortunately there are very few ways to fix it other than
individuals coming forward and essentially fighting back against content
bullies. It very much is a challenge to police copyrighted works online, but
rather than finding some middle ground that respects fair use, there is a large
percentage of content holders who have just said, “You know what? We’re just going to take
stuff down that matches our stuff. If something comes up that’s fair use, then
they can always dispute that.” The reality is that the dispute process
under the DMCA, it’s easy for a lawyer but not necessarily easy for your
average Internet user. To give you the spectrum of content bullying cases,
we’ve helped everyone from students who are still in high school to
grandmothers. People with no legal experience whatsoever. It happens a lot.
It’s very pervasive and it’s a problem that the Internet hasn’t quite solved yet.

GIM: During your South By Southwest presentation, you
discussed “the bots takedown issue.” Would you mind elaborating on
that?

TK:OK, so YouTube has a section of their terms of
service called Section
H. That’s the section of their terms of service that basically says you’re
not allowed to use bots or computer programs to artificially inflate your view
counts or “likes.” However, we found that their algorithm tends not to be
accurate and the appeals process for a lot of individuals is so poor that there
essentially isn’t an appeals process. I have an article about it on our website
called “The
Curious Case of the YouTube Bots,” if you want to learn more.

Essentially, we ended up
going to YouTube and having about a three-month-long conversation about YouTube
bots and can we get these individuals’ videos restored, representing about a
dozen individuals ranging from a pop artist who knew exactly where the bots
came from, which in this case was an 18-year-old fan who didn’t know what he
was doing because he was 18 and thought he was helping, to a law student who
had a podcast about sports law whose video was taken down. Most of these videos
weren’t viral videos. They were videos with around 8,000 views. Unfortunately,
in all of these cases, even when we intervened on the appeal, even when we
helped them write the appeal so it seemed professional, it made sense, it tried
to get in all of the relevant facts you can put in 1,000 characters, none of
those were [effective].

I should also mention that
YouTube on Feb 14th did come out with a
statement on auditing view counts. I’m not sure if it’s related to our
story or not, but we’re monitoring the situation to see if they’re going to
start removing artificial views as opposed to taking entire videos down, which
is what all of the individuals we talked to would have preferred. They’re more
than happy to give away any views that they don’t think are lawful or that came
from bots. They’re just more concerned that their video was taken down and
there’s no recourse whatsoever.

GIM: For artists who are routinely making mashups or
remixes, are they always protected?

TK: Not all mashups, unfortunately, are [protected]. We
have a few best practices for video creators. First off, we always recommend if
this is an area that you’re passionate about and you’re going to get into, it’s
in your best interest to read up. We have guides
on our website. The Fair Use Center at Stanford has some good guides and also the
Electronic Frontier Foundation has some great guides on fair use.

Beyond that, there are a few
key things to do. The first is remix the message, not just the media. You’ll
see a lot of song mashups that they just mashed two songs together but there’s
no commentary or criticism. There’s no real juxtaposition. It just sounds nice.
That’s probably not going to be fair use, but let’s say you’re taking two songs
and putting them together because when you hear those two songs together it
dramatically changes the message of those songs and provides commentary on
those songs. It’s the same thing with video, really. In Jonathan [McIntosh’s]
case, he took Buffy the Vampire Slayer and Edward from Twilight
and took these two videos and mashed them up to change the message of each.
Buffy’s message was sort of women are empowered, and looking at those positive
female role models contrasted with Edward who, the whole Twilight
series, tends to encourage some maybe less feminist-friendly ideals.

GIM: Oh yeah, that guy’s a stalker.

TK: Yeah, a stalker, essentially. So when you contrast
Buffy with someone who’s basically trying to stalk the love interest in that
story, you’re really remixing the message and telling a different story. We
also recommend that people use only as much as they need to make their point.
Fair use is all about making a point. It’s not about reusing others’ work
because it sounds nice or it looks pretty or to avoid having to shoot your own
b-roll or avoid having to create your own music. It’s really there to serve as
something that you can comment on, that you can critique, that you need to make
your point. We see this a lot with documentary
filmmakers who will quote short sections of news stories to make their
point that something is newsworthy. Not only that it’s newsworthy, but critiquing
various media takes to show that maybe a criminal defendant was treated
unfairly by the media or things like that. Fair use is about being strategic
with your art.

GIM: How can someone know if they’ve been the victim of a
content bully or if they’ve legitimately violated some sort of copyright or
fair use?

TK: We always encourage before doing anything, just to
stop and think. If you were using someone else’s content, did you get
permission? Did you have a Creative Commons license or other open license to
use it or was it in the public domain, which is before 1923? If it falls into
any of those categories, you are probably being content bullied since if you
have a license, if it’s openly licensed, or if it’s in the public domain, you
don’t need permission to use it. If it’s copyrighted work, you really have to
go through a fair use analysis. It’s a very complicated four-step analysis that
even lawyers can come to different conclusions on, but we really encourage
individuals if they’re being content bullied to reach out to a group like New
Media Rights. We can help do that fair use analysis for them.

GIM: Are there any hard-and-fast rules for avoiding content
bullies?

TK: Unfortunately, there aren’t any really hard-and-fast
rules. We always recommend if you’re using media for non-commentary or
commercial purposes, consider things like open licenses like Creative Commons.
We also recommend giving credit where credit is due because we found that if
the individual gave credit, people tend to be less angry than if they just took
something if it’s a questionable fair use case.